Vice-Chair's Interim Report – Incident Related to Driving Irregularity, Improper Vehicle Search, Unlawful Arrest and Excessive Use of Force

RCMP Act Paragraph 45.42(3)(a)

Vetted version for posting

October 22, 2007

Overview

Just before 4:00 p.m. on January 11, 2003, Constable A of a RCMP Detachment in Alberta, who was working temporarily with Regina RCMP Highway Traffic Services in Saskatchewan, stopped the complainant while he was driving on Highway 1 west of Regina. Constable B of the Regina RCMP Highway Traffic Services was also on the scene, having stopped a different vehicle. Constable A inspected the complainant's documentation. The complainant was found to have approximately $20,000 in cash in a bag in the front of his station wagon. The members manually searched the vehicle, and Constable A also introduced his Police Service Dog (PSD). The PSD indicated the presence of narcotics, and the RCMP members, in further searching the vehicle, discovered two packages wrapped in paper. The complainant was detained during the search, and was then arrested. The complainant's vehicle was seized and searched. The wrapped parcel was later found to contain approximately $60,000 in cash in addition to the $20,000 located in the bag, for a total of $80,000. The complainant was later released, no narcotics were found in his vehicle and the money could not be associated to any offence, and no charges were laid.

On January 10, 2005, the complainant filed a complaint with the Commission. In his complaint, he alleged that: Constable A was driving in a dangerous manner prior to and when stopping him; the members improperly searched his vehicle; the members did not care for him in an appropriate manner while he was in their custody; the members unlawfully and unnecessarily arrested him; the members used excessive and unnecessary force during their arrest of him; and the members seized his vehicle without cause and had it impounded.

As required by the RCMP Act, the complaint was forwarded to the RCMP for investigation. Following its investigation, the RCMP provided the complainant with a letter of disposition dated February 9, 2007 which did not support his allegations.

The complainant was not satisfied with the results of the RCMP 's investigation. On March 16, 2007, he requested a review by the Commission. The Commission received the materials relating to this file from the RCMP on May 7, 2007.

For the reasons outlined below, the evidence leads me to conclude that the members unreasonably and improperly searched and seized the complainant's vehicle and arrested him. However, I also conclude that the members provided the complainant with appropriate care and did not use force towards him. In addition, I conclude that there is insufficient evidence to demonstrate that Constable A committed a driving irregularity.

Commission's Review of the Complaint

It is important to note that the Commission for Public Complaints Against the RCMP is an agency of the federal government, distinct and independent from the RCMP . When reviewing a complaint, the Commission does not act as an advocate either for the complainant or for RCMP members. Rather, its role is to inquire into complaints independently and to reach conclusions after an objective examination of the information provided.

Having now reviewed the complaint and the RCMP 's letter of disposition, I have prepared this report, which contains my findings with respect to the complaint. A detailed and very careful examination has been undertaken of all the relevant materials related to this file. This has included a review of the members' statements and notes and relevant legislation.

First Allegation: Constable A was driving in a dangerous manner prior to and when stopping the complainant.

In his complaint, the complainant stated that he was travelling through Regina on the Trans-Canada Highway when he saw an RCMP member pass him, going in the opposite direction. He related that he saw the RCMP member look at his licence plate, and explained that the member then spun the vehicle around and, "like a rocket flew by [him] at aprox. 150 kph flew by [him] like [he] wasn't even moving." According to the complainant, the member (later identified as Constable A) then "slamed" on his brakes and jumped out of his vehicle. The complainant related that Constable A approached his window and asked for his licence and registration, at which point the complainant asked what he had done wrong. Constable A told him that one of his headlights was misaligned. The complainant stated: "[...] is this a reasonable way to handle the situation for a mis aligned head light? To jepordize them selfs by speeding so much to race by me and slaming on their breaks to warn me of a mis aligned head light [sic throughout]." The complainant explained that he had owned his vehicle for six years and had never been told of a misaligned headlight.

Constable A stated that on the relevant date and while performing Traffic Service duty, he received a request from Constable B to assist with a traffic stop for officer safety reasons. Constable A stated that he was driving in the eastbound lanes of the Trans-Canada Highway when he noted a westbound vehicle with a misaligned passenger side headlight. He related that he noticed the light, as it was pointing into the eastbound lanes, and obviously higher than the driver's side headlight. Constable A explained that as Constable B was west of his location, he located the next crossover point and changed direction. After doing so, he explained that he passed the vehicle with the headlight infraction and obtained a British Columbia licence plate, after which he reconfirmed his observation of the lighting infraction.

Constable A stated that he continued driving and pulled his vehicle to the shoulder at Constable B's position. Once out of the vehicle, he explained that he indicated to the driver of the vehicle with British Columbia plates, later identified as the complainant, to pull to the shoulder. According to Constable A, he then approached the complainant and requested his documentation.

Constable B related in his statement to the public complaint investigator that late in the afternoon on the date in question, he was working alone and had a semi truck stopped in the westbound lanes of Highway 1. He explained that he had called Constable A to back him up with his stop, but did not observe Constable A's driving. He stated that he first saw Constable A after he had already parked at the side of the road. According to Constable B, he observed Constable A wave a vehicle, later identified as that of the complainant, onto the side of the road.

The accounts of the complainant and Constable A differ in their characterization of Constable A's driving. While it is clear that Constable A did pass the complainant in the eastbound lanes, then turned around and passed him in the westbound lanes, it is apparent that he did so not specifically to stop the complainant, but in response to a call for assistance from Constable B. Constable A was required to stop at Constable B's location to assist the latter member, and he took advantage of that opportunity to stop the complainant's vehicle, which he had observed to have a defective light. There is no independent evidence to support the complainant's contention that Constable A's driving was dangerous. Accordingly, I find that there is insufficient evidence to conclude that Constable A was driving in a dangerous manner.

Finding: There is insufficient evidence to conclude that Constable A was driving in a dangerous manner.

Second Allegation: The members improperly searched the complainant's vehicle;

Third Allegation: The members did not care for the complainant in an appropriate manner while he was in their custody;

Fourth Allegation: The members unlawfully and unnecessarily arrested the complainant; and

Fifth Allegation: The members used excessive and unnecessary force during their arrest of the complainant.

The complainant's evidence in relation to his arrests and the searches of his vehicle differed in some respects from that of the members. However, in the circumstances, it is in my view sufficient to rely on the members' evidence in most respects.

The complainant's evidence with relation to the lack of care and excessive force alleged will subsequently be examined.

The members' evidence

Constable A stated that when he requested the complainant's licence, registration and insurance, the complainant produced his licence and proceeded to exit his vehicle, walk around to the passenger side, open the door, and locate the registration and insurance on the passenger seat. Constable A explained that this action concerned and confused him, as he could not understand why the complainant did not simply reach for the documentation from his seated position. Constable A also stated that the complainant explained that the reason for his travel from Vancouver to Winnipeg was to transport a truck motor to his brother; Constable A found it odd "that this male would drive half way across the country with a truck motor that could have been purchased in Winnipeg." Constable A described the complainant as "overly polite" and noted that "a very strong odor of a masking agent emanated from inside the car."

In his contemporaneous notes, Constable B stated that Constable A told him that he had checked the complainant on CPIC and the results were negative. Constable B explained that he needed Constable A to "check" the semi truck he had stopped and, as a result, Constable B took the complainant's documentation from Constable A and proceeded to speak to the complainant. Constable B stated that the complainant told him that he had just driven from Vancouver to Winnipeg to visit his brother. Constable B explained that he looked in the vehicle and noted that there was no luggage whatsoever. He also noted that the complainant was "displaying signs of extreme nervousness. He was swallowing hard, his hands were trembling and he was figiting around enough that it made [him] extremely nervous."

Constable B noted that he then returned to his vehicle and did a computer check,^[1] which revealed two entries for the complainant, both relating to suspicious currency transactions. Constable B also noted two entries for a Manitoba man with an identical last name who was a suspect for cocaine trafficking. At that point, Constable B stated that he called Constable A back for officer safety reasons, and moved to the passenger side of the vehicle due to the heavy highway traffic.

Constable B stated that he opened the passenger door and put his head in the vehicle to try to get somewhat out of the cold, and continued to speak with the complainant. Once he had done this, Constable B stated that he noted a heavy, sweet smell suggestive of a masking agent in the vehicle; an underlying smell similar to the smell of acetone in bulk cocaine; a copy of the drug smuggling movie "Traffic" laying on the seat; and the complainant continuing to "dart" his eyes between the member and a black bag on the passenger side floor. According to Constable B, he asked the complainant if he had any large amounts of cash in the vehicle. He related that the complainant turned pale, swallowed hard, continued to glance at the duffle bag, and asked what the member considered a large amount of cash. Constable B stated that he asked the complainant how much money he had with him, to which the complainant replied that he had approximately $20,000 in the black duffel bag. Constable B noted that he asked the complainant if he had any other cash, to which the complainant replied, "No, go ahead and look."

Constable B stated that he then closed the passenger door and told Constable A about the money. He indicated that as he was speaking with Constable A, the complainant exited his vehicle and opened the back hatch area. Constable B explained that the members immediately attended that area, where they observed a mini-bike laying in the back of the vehicle. Constable B related that he told the complainant, who was reaching for something, to stop and that the member would "do it for him." Constable B stated that he pulled the mini-bike out of the vehicle and handed it to the complainant. He related that the only other items in the back of the vehicle were a sheet of plywood, a jerry can and a funnel. Constable B stated that the members lifted the sheet of plywood, revealing an empty trunk compartment. According to Constable B, it is common knowledge that vehicles such as the complainant's have attached second compartments that are not clearly visible; however, he stated that the complainant stated that this compartment did not open, and that he had never opened it before.

Constable B noted that at this point, the complainant, "[...] was now again gone pale, was franticly licking his lips and would not look Cst. [A] in the eyes when speaking with him and his voice had become agitate." Constable B stated that he and Constable A believed that the complainant was lying. He related that Constable A went and retrieved his PSD, at which point the complainant stated that he was cold and wanted to sit in the car. Constable B stated that the complainant was placed in the back of his police vehicle.

When Constable B returned to the complainant's vehicle, he stated that he was informed by Constable A that the PSD had indicated the presence of narcotics on the rear of the vehicle. Constable A then secured his PSD in his police vehicle, and the members proceeded to arrest the complainant for possession of a controlled substance and proceeds of crime. Constable B indicated that he believed that there were reasonable and probable grounds to arrest the complainant, as the drug detection dog had alerted to the vehicle, the complainant was carrying a large amount of cash and had no luggage, and there were unusual odours in the vehicle as described above. Constable B also noted that the complainant was travelling with a copy of the movie "Traffic", which suggested "at least a passing interest in drug dealing."

Constable B stated that the complainant was advised of his arrest and read his rights from the standard wording card he carried with him, and that the complainant appeared to understand his arrest. According to Constable B, the complainant was not handcuffed, as he was already sitting in the police vehicle at his request due to the cold.

After arresting the complainant, Constable B related that the members returned to the vehicle and opened the compartment in the rear of the vehicle. He stated that they noticed something large under the carpet and, upon pulling the carpet back, noted two packages that were "some what square and wrapped + taped heavily in what appeared to be packing tape."

Constable B stated that he then returned to the complainant and arrested him a second time for trafficking in a controlled substance, as the members believed the parcels to contain drugs. Constable B indicated that he also read the complainant his rights a second time following this second arrest.

With respect to the complainant's arrests, Constable A's statement and notes were consistent in all material respects to those of Constable B. He also stated that he believed reasonable and probable grounds existed for the arrests of the complainant due to "all the indicators, verbal and observed, from this traffic check, coupled with the positive dog indication." He added that he did not recall either member handcuffing the complainant, whom he described as being polite and "very cooperative" throughout the investigation. He stated that the complainant was in Constable B's police vehicle throughout the searches and prior to either arrest, and remained in the police vehicle during those arrests.

Vehicle search prior to initial arrest

Constable B recalled that the complainant told him to "go ahead and look" for further amounts of cash in his vehicle, and both members stated that the complainant subsequently opened the rear hatch, ostensibly for the purposes of that search. The members proceeded to search manually in the vehicle, and then introduced a drug detection dog.

The members searched the complainant's vehicle without a warrant. Although a vehicle does not engage as significant a privacy interest as a dwelling-house, several factors must nonetheless be considered to determine whether the warrantless search was reasonable. Although not expressly stated by the members, I presume that the authority for their search depended on the complainant's apparent invitation to the members to search his vehicle. In order for a person to waive their constitutional right against unreasonable search and seizure, the following conditions should apply:

1. there was a consent, express or implied;
2. the giver of the consent had the authority to give the consent in question;
3. the consent was voluntary [...] and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;
4. the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent;
5. the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested, and
6. the giver of the consent was aware of the potential consequences of giving the consent.^[2]

In this instance, given the complainant's invitation to the members to search and his likely awareness of the contents of his vehicle, it would seem that conditions (i), (ii), (iii), (v) and (vi) could be met with very little difficulty. Indeed, I would find that condition (iv) would also have been met with little difficulty had the members confined their search to locating large amounts of currency, and given their stated area of interest and the object for which the complainant had permitted the search. However, the members did not confine themselves to a manual search. Constable A introduced his drug detection dog to the complainant's vehicle. This action was not consistent with a search for currency, was not a necessary component of such a search, and could not have been foreseen by the complainant, the giver of the consent. Accordingly, I find that the complainant could not, in this instance, have been aware of the nature of the police conduct to which he was consenting. As a result, I find that Mr. the complainant's consent was vitiated in the circumstances, as it was not voluntary within the judicially accepted meaning of the word.

Notwithstanding the lack of consent by the owner or operator of a motor vehicle, both the Controlled Drugs and Substances Act and the Criminal Code provide that warrantless searches are permissible in certain circumstances. Both statutes state that in cases where exigent circumstances exist, warrantless searches may be conducted. In general, exigent circumstances will exist "if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed."^[3] The members, in their notes and statements, offered no explanation of their decision to search the complainant's vehicle in the absence of a warrant, presumably relying on what they took to be the complainant's waiver of his constitutional right against unreasonable search and seizure. As a result, it is impossible for me to determine that a warrant could not have been obtained, either by visiting a Justice of the Peace or by seeking a telewarrant, due to exigent circumstances. This is especially true given the time of day at which the incident occurred; it was the late afternoon, as opposed to the late night or early morning when seeking a warrant may have been more difficult.

I would also note that I do not accept that the reasonable grounds required by the Charter existed to justify the search, warrant or not: while a sweet smell similar to that of a masking agent, the smell of acetone and the possession of a large amount of money may be suspicious, these indicia are not sufficient evidence of the presence of drugs. The possession of a Hollywood film dealing with drugs is most certainly not evidence of the presence of drugs; in fact, I find disingenuous the proposition that the possession of such a film constitutes reasonable and probable grounds for either a search or an arrest. Based on the foregoing, I find that the members' initial search of the complainant's vehicle was unreasonable and improper.

The complainant's initial arrest

The complainant's first arrest was predicated on the evidence found during the search conducted by the drug detection dog and the members. I have already found that search to be unreasonable and improper, and, as a result, I also find the arrest flowing from it to be improper. I would add that I would have reached the same conclusion had I found the search to be reasonable: in my view, and as previously noted, insufficient reasonable and probable grounds existed on which to believe that the complainant had committed the offence of possession of narcotics or possessed proceeds of crime. No direct evidence existed that the money carried by the complainant was the proceeds of a crime, or that the complainant knew it to be such; the possession of large quantities of money is not necessarily indicative of criminal activity. In addition, the fact that the drug detection dog alerted to the odour of narcotics was not, in my view, demonstrably sufficient evidence of the actual presence of drugs in the vehicle. As respects the complainant's behaviour, which was at times admittedly odd, it is difficult to justify the negative inferences drawn by the members.

Vehicle search following initial arrest

I have already found the initial vehicle search and the complainant's arrest to be unreasonable and improper. As a result, I find that the vehicle search incident to arrest, predicated on the earlier unreasonable and improper events, to be equally unreasonable and improper.

The complainant's second arrest

The complainant's second arrest was based on the wrapped parcels found during the search of his trunk. I have already found that search to be unreasonable and improper, and, as a result, I also find the arrest flowing from it to be improper. I would add that, as above, I would have reached the same conclusion had I found the search to be reasonable: in my view, insufficient reasonable and probable grounds existed on which to believe that the complainant had committed the offence of trafficking in a controlled substance. The wrapped parcels, which appear to be the foundation for this second arrest, were not opened by the members and it was not established that they contained drugs. They were later found to contain $60,000 in cash.

Care while in custody and use of force

The complainant stated that he was left to stand outside in the cold without adequate clothing while they searched his vehicle, and was then handcuffed and slammed into a police vehicle. The members both indicated that the complainant was permitted to sit in a police vehicle at his request during the searches, and was not handcuffed after being arrested, as he was already in the vehicle. Based on their evidence, the complainant could not have been handcuffed outside the police vehicle and then slammed into it following the searches of his vehicle. Based on a balance of probabilities, I prefer the consistent evidence of the members in this instance. Accordingly, I find that the members provided appropriate care to the complainant and that no force was used.

Recommendation: I recommend that Constable A and Constable B review the legal requirements for arrests, searches and seizures, specifically the requirement of reasonable and probable grounds.

Sixth Allegation: The members seized the complainant's vehicle without cause and had it impounded.

The complainant stated that after arresting him, the members told him that his car was being seized as proceeds of crime, and took it to "some lab" with a tow truck.

Constable B stated that the complainant was under arrest at the time his vehicle was seized, and that the vehicle was seized as evidence and to conduct further searches in a safe and controlled environment. He noted that the complainant's vehicle was towed to "F" Division Headquarters in Regina, where the RCMP 's Drug Section and Proceeds of Crime Section was contacted. The vehicle and packages were photographed and the packages opened. The packages were found to contain approximately $60,000 in cash, which was sealed in exhibit bags. The money and vehicle were eventually returned to the complainant when no offence could be made out.

Constable A confirmed that the members decided to send the semi truck that had originally been stopped on its way and to call for a tow truck to remove the complainant's vehicle. Constable A stated that he followed the towed vehicle to "F" Division Headquarters.

I have determined above that the warrantless searches and arrests of the complainant were unreasonable and improper. The requirements that apply to searches apply equally to seizures. For that reason, I find that the seizure of the complainant's vehicle was unreasonable and improper in the circumstances.

Finding: The seizure of the complainant's vehicle was unreasonable and improper in the circumstances.

Having considered the complaint, I hereby submit my Interim Report in accordance with paragraph 45.42(3)(a) of the RCMP Act.

_____________________
Paul E. Kennedy
Chair

[1] Noted by Constable A to be a PIRS (Police Information Record System) check.

[2] R. v. Wills (1992), 70 C.C.C. (3d) 529 (Ont. C.A.).

[3] R. v. Grant, [1993] 3 S.C.R. 223.